from the stupid-this-had-to-happen-in-the-first-place dept

We've written a few times about Rockstar Consortium, a giant patent troll that was created when Microsoft and Apple (and a few others) teamed up to outbid Google, Intel (and a few others) in buying thousands of Nortel patents. Nortel admitted that it had bulked up on many of these patents for defensive measures, but once Nortel went bankrupt they went to the highest bidder (and the bidding went pretty damn high). The winners of the bidding kept a few of the patents for themselves, but then dumped them all into "Rockstar Consortium" which was a new giant patent troll and which, importantly, was not subject to promises that Apple and Microsoft initially made (to avoid antitrust problems) to license the patents under reasonable terms.

Last year, Rockstar launched its massive patent attack on Android, suing basically all the major Android phone makers and Google. While some have argued that big company v. big company patent attacks aren't a form of patent trolling, some of us disagree. This, like most patent trolling, is just trying to extract money from companies and has nothing to do with actual innovation. In the tech world, some have referred to this kind of thing as "privateering" in which a big company puts the patents into a shell company to hide their trolling activity.

Either way, it appears that a settlement of sorts has been reached, with Rockstar Consortium agreeing to sell its patents to RPX (with Google and Cisco picking up much of the bill). RPX is sort of the "good version of Intellectual Ventures." It's a company that collects a bunch of patents with the goal of using those patents for member companies for defensive purposes. Even though RPX has generally been "good," the business model basically lives because of patent trolling. Its very existence is because of all the patent trolling and abuse out there. In this case, though, it's making sure that basically anyone can license these patents under FRAND (fair and reasonable, non-discriminatory) rates. The price being paid is approximately $900 million. While that article points out that this is considerably less than the $4.5 billion Microsoft and Apple paid originally, again, this is only 4,000 of the 6,000 patents, and you have to assume the 2,000 the other companies kept were the really valuable patents.

In short, this is basically Google and Cisco (with some help from a few others) licensing these patents to stop the majority of the lawsuits -- while also making sure that others can pay in as well should they feel threatened. Of course, Microsoft, Apple and the others still have control over the really good patents they kept for themselves, rather than give to Rockstar. And the whole thing does nothing for innovation other than shift around some money.

Cisco's Mark Chandler celebrated the deal as a "common sense" solution. And, it certainly beats all out patent litigation war. But it's still just about moving money around, rather than encouraging innovation. He notes that in settling this as a group, it helps keep things from getting totally out of control:

While we have no quarrel with companies using their patents to stop the copying of differentiating features without permission... the driving up of patent valuations as each side in the war sought to bulk up for battle ended up serving no one other than lawyers and middlemen.

In the end, this is a better solution than years of legal battles. Making this offering open to others (at least for a limited time) is also a better result than might otherwise have been achieved. But it still shows how patents are abused and misused to shake down companies, rather than for any legitimate purpose. And, as Chandler also notes, the real issue still has to come down to fixing the broken patent system:

What is most critical, however, is changing the law to level the playing field and restore a patent system that rewards innovation, not litigation gamesmanship. The chance will come later this spring to enact meaningful patent reform. We will be there as advocates, and hope you will be too.

from the locking-up-science dept

The very first copyright law in the US was officially called "An Act for the Encouragement of Learning." Indeed, that was the actual stated purpose of copyright law at the time. It wasn't supposed to be a system for protecting the revenue of artistic folks. In fact, it didn't even cover most artistic works at the time. It was limited to "maps, charts and books." Music? Not protected. Paintings? Not protected. Sculpture? Not protected. That's because it wasn't about artwork, but about the spread of knowledge through learning.

Yes, the idea was to provide a limited monopoly to incentivize the initial creation, and the exchange was that it would then be given into the public domain soon after, such that everyone could learn from it. Yesterday, we covered the importance of the public domain, and today's topic for Copyright Week goes hand in hand with it: the idea of open access.

Copyright law was supposed to encourage greater access to knowledge to have a better educated populace. But the current setup of the law appears to do the exact opposite of that much of the time. When it comes to newly discovered knowledge, our copyright law (and the way it's used by some giant companies) seems almost entirely focused on making knowledge more expensive and less open thereby massively hindering the ability to share knowledge and better educate the public.

This has been seen most recently in the publishing giant Reed Elsevier's effective war on access to knowledge, using copyright law as a sort of weapon to block researchers from sharing their own research. However, as we've discussed for many years, the whole system is rigged against knowledge access and sharing, and in favor of giant publishers locking up knowledge -- often including research that was funded almost entirely by your tax dollars.

Here's how the privitization of knowledge works, thanks to copyright:

Professor wants to do some research, and files for some grants (usually from the government) to pay for that research. If that professor works for a state school, at least part of their salary is already partially paid for by public funds.

Government agrees to grant, provides taxpayer money to the researcher to conduct important research.

Research is completed, and the professor and some grad students/assistants write up the results in a paper.

Because academics are still (stupidly) judged on how often they "publish" in "prestigious" journals, the professor submits the paper to a few well known journals. In some (though not all) fields, the journals make the professor pay a submission fee.

The journals send the paper out to two peer reviewers, who do not get paid. They basically provide an editorial function to the publisher for free.

The journal "accepts" the paper, and demands that the professor hand over every possible copyright on the work and related research. I even know some academics who had to recreate their own research for later research, because they felt they were barred from using a chart they had created in a previous work without violating the copyright.

The publisher then sells the journal to academic libraries at absolutely insane prices. A freedom of information request at one university a few years ago showed that the university paid £688,093 -- or $1.1 million -- over a five year period for just three products from Elsevier, and only one of those products included full access to all of the published papers. The other two were merely for "abstracts and statistics." For just the popular 'Science Direct,' this one university paid between $150,000 to about $200,000 per year, for a subscription to just one journal.

Even when, as with the National Institute of Health, there's a requirement for "open access" publishing after one year, many journals will try to charge a very high fee (often thousands of dollars) to pay for "submitting" the paper to an open access repository.

In short, we have taxpayer funded research for which the publisher pays nothing, but gets the entire copyright, and then they sell the journals back to academic institutions for subscriptions often well over $100,000 per year -- and the research is completely locked up. Even more insulting in all of this, copyright was never the reason that the research was done in the first place. Remember, the purpose of original copyright law was to create an incentive for these individuals to do the research and publish the results -- but here, researchers are academics who are getting paid via grants, so the copyright is not the incentive at all.

It can be argued that copyright was at one point part of the incentive for the publishers to set up the peer review process, and then to help publish and distribute the works, but is that a process that is needed any more? It's difficult to see how. The things that publishers do (peer review, distribution) can be done much more effectively and efficiently these days, without the gatekeeper status or the insanely high prices. Oh yeah, and without locking up the knowledge.

Learning and scientific knowledge increases when we share knowledge, data and information widely and freely, allowing others to learn from it, to build on it and to continue to educate others and themselves. Today's copyright law does the opposite in almost every way. That's why radically changing how open access works and when it's expected is so important if we're to bring copyright law back anywhere near its initial intended purpose.

7,564,784: Method and arrangement for transferring information in a packet radio service

6,170,073: Method and apparatus for error detection in digital communications

7,848,353: Method, communication system and communication unit for synchronisation for multi-rate communication

If these sound like a set of fairly random and extremely broad patents, you'd have a point. Just take a look at that first one, which is basically claiming the ability of a computer system to receive a URL (say, in an email message) and automatically pull part of the page in to the first computer -- ie., it's a patent on a really basic and obvious concept, to proactively pull data from a website referenced in a link as a sort of preview. As is so often the case with patents like this, this is the kind of thing lots of people talked about around the time it was patented, but which people didn't do because other aspects of the infrastructure weren't ready yet, such as bandwidth (i.e., in 1995, people didn't want to push too much to a user's computer, because there was a good chance they were speeding along on a 2400 baud modem).

Most of the other patents are similarly broad or obvious concepts that were generally not being done because of other factors, not because there was anything non-obvious about the idea, or that it was particularly difficult to do. A patent is supposed to incentivize someone to invent something that wouldn't otherwise be invented. That's not happening here.

And, remember, this is the same Intellectual Ventures that claims it that it focuses on "high quality" patents.

Oh yeah, also, for all the talk about IV's inventive operations, not a single one of these patents originated with IV. And they're not from the proverbial "independent inventor" IV likes to claim it's helping. The 784 and 073 patents both came from Nokia, while the other patents originated with a variety of other companies: NetDelivery, Conexant, ViA, In Motion and IP Wireless. Most of the companies are still in business. It's unclear if anyone -- such as Nokia -- retains an interest in those patents, but that would be a pretty slimy move to pass off patents to IV to avoid suing a direct competitor themselves. As Groklaw rightly notes, this certainly has all the hallmarks of privateering, where big companies pass off their patents to some trolls to do their dirty work. It's just that, in this case, the troll is the world's largest, Intellectual Ventures.